Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Ankucic v Chalhoub [2013] NSWIRComm 93
• Hearing dates: 7 February, 8 May, 14 May, 12 July, 6 September 2013
• Decision date: 24 October 2013
• Jurisdiction: Industrial Court of NSW
• Before: Boland J President; Haylen J; Staff J

Decision

(1) Leave to appeal is granted.

(2) The application by Bakhos Youssef Khalil to withdraw his plea of guilty is refused.

(3) The appeals are upheld.

(4) The notice of contention is dismissed.

(5) John Milad Chalhoub is fined an amount of $2,600 in respect of the intimidation charge under s 136(1)(b) of the Occupational Health and Safety Act 2000 and $900 in respect of the hinder and obstruct charge under s 136(1)(a) of that Act.

(6) Bakhos Youssef Khalil is fined an amount of $1,600 in respect of the intimidation charge under s 136(1)(b) of the Occupational Health and Safety Act 2000 and $750 in respect of the hinder and obstruct charge under s 136(1)(a) of that Act.

(7) The respondents shall each bear half the costs of the prosecutor's costs of the appeal as agreed or assessed together with the prosecution's costs of $4,101.25 in the Chief Industrial Magistrate's Court.

• Catchwords: APPEAL - OCCUPATIONAL HEALTH AND SAFETY - Respondents pleaded guilty and were convicted and fined in Chief Industrial Magistrate's Court of contravention of s 136(1) (a) and 136(1)(b) of Occupational Health and Safety Act 2000 - Application for leave to appeal and appeal by prosecutor from decision of Chief Industrial Magistrate - Manifest inadequacy of fines imposed - Application by one respondent to withdraw plea of guilty - Principles to be applied to withdrawal of plea application - Application refused - Consideration of first instance decision - Errors found - Fines manifestly inadequate - Re-sentencing
• Legislation Cited: Fines Act 1996; Industrial Relations Act 1996; Occupational Health and Safety Act 2000
• Cases Cited: Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29; Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 106; (2001) 105 IR 181; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Environment Protection Authority v Barnes [2006] NSWCCA 246; Hili v The Queen ; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520; Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31; Inspector Fraser v Karabelas [2011] NSWIRComm 56; (2011) 207 IR 228; Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153; Inspector James v Paul [2011] NSWIRComm 82; (2011) 209 IR 212; Inspector Walker v Earthquake Promotions Pty Ltd [2013] NSWIRComm 56; Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346; Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464; Markarian v R (2005) 228 CLR 357; McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310; Meissner v R [1995] HCA 41; (1995) 184 CLR 132; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; R v JW [2010] NSWCCA 49; (2010) NSWLR 7; Workcover Authority of NSW (Inspector Mansell) v Jian Chen and Obing Pty Ltd [2004] NSWIRComm 247; (2004) 137 IR 33
• Category: Principal judgment
• Parties: Inspector Petar Ankucic (Appellant); John Milad Chalhoub (First Respondent); Bakhos Youssef Khalil (Second Respondent)
• Representation: Mr B Docking of counsel (Appellant); The respondents were self-represented; WorkCover Authority of New South Wales (Appellant)
• File Number(s): IRC 18 of 2013; IRC 19 of 2013

Decision under appeal

• Date of Decision: 2012-12-18 00:00:00
• Before: Magistrate C Barkell
• File Number(s): 2012/241663 and 2012/245323

Judgment

1 Inspector Petar Ankucic of the WorkCover Authority of New South Wales ("the appellant") seeks leave to appeal and appeal against a decision of her Honour Magistrate C Barkell (sitting as the Chief Industrial Magistrate) given on 18 December 2012 in matters 2012/241663 and 2012/245323. The appeal is pursuant to s 197 of the Industrial Relations Act 1996 ("the IR Act") as applied by s 105(3) of the Occupational Health and Safety Act 2000 ("the OHS Act").

2 John Milad Chalhoub ("the first respondent") and Bakhos Youssef Khalil ("the second respondent") were each convicted by her Honour of breaches of both s 136(1)(a) and s 136(1)(b) of the OHS Act. Fines were imposed in the sums of $300 and $1000 on each respondent for the respective breaches. The maximum penalty for an individual defendant in respect of a breach of s 136(1)(a) is $16,500. In respect of a breach of s 136(1)(b), the penalty is also $16,500. Each respondent was ordered to pay the prosecutor's costs in the sum of $4101.25.

3 It is convenient to note at this point that a principal ground of appeal was the manifest inadequacy of the penalties imposed given the serious nature of the offences.

The statutory provisions

4 The offences under s 136(1)(a) and s 136(1)(b) of the OHS Act are in the following terms:

136 Offence of obstructing or intimidating inspectors and others exercising functions under Act

(1) A person must not:

(a) obstruct, hinder or impede any authorised official in the exercise of the official's functions under this Act, or

(b) intimidate or threaten or attempt to intimidate any authorised official in the exercise of the official's functions under this Act.

Maximum penalty:

(a) in the case of a corporation (being a previous offender)-750 penalty units, or

(b) in the case of a corporation (not being a previous offender)-500 penalty units, or

(c) in the case of an individual (being a previous offender)-225 penalty units, or

(d) in the case of an individual (not being a previous offender)-150 penalty units.

(2) In this section:

authorised official means an inspector, an authorised representative (within the meaning of Division 3 of Part 5), a member of an OHS committee, an OHS representative or other person authorised to exercise functions under this Act or the regulations.

The charges

5 The charge under s 136(1)(a) of the OHS Act in respect of the first respondent alleged that:

Description of Offence:	On 2 August 2011, at Harris Park in the State of New South Wales, John Milad Chalhoub (the defendant) did obstruct, hinder or impede an authorised official, namely, Inspector Mara Karina Ochoa, in the exercise of the official's functions under the Occupational Health and Safety Act 2000 contrary to a 136(1)(b) of that Act (first offence).
Date of Offence:	2 August 2011
Place of Offence:	Harris Park in the State of New South Wales
Short Particulars:	(a) Mara Karina Ochoa was an Inspector appointed under Division 1 of Part 5 of the Act. (b) "My Good Looks Salon" (the salon) is located at Harris Park. (c) On 2 August 2011, the Inspector attended the salon. (d) The defendant did obstruct, hinder or impede the Inspector by any one or combination of the following acts: (i) The defendant tried to explain what was required in order to comply with Improvement Notice 7-227909 in relation to bullying, due to the defendant speaking over the Inspector and cutting off the Inspector in an angry and abusive manner using words such as "fuck" or "fucking". (ii) The Inspector tried to explain to the defendant that the Inspector was there because a complaint had been lodged and issues identified in the work place but the defendant spoke over the Inspector and called the Inspector names such as "fat bitch", "fucking bitch", "fat cow", "racist bitch", "pig" and "donkey" and, after the Inspector told the defendant to stop using abusive language towards the Inspector, the defendant kept screaming over the Inspector. (iii) The Inspector tried to explain to the defendant that there were safety issues to consider in hairdressing salons but the Inspector got cut off by three men who were present, one of whom was the defendant. (iv) The Inspector was unable to determine if the salon had undertaken compliance action related to consultation or hazardous substances, or both.

6 The charge under s 136(1)(b) of the OHS Act in respect of the first respondent alleged that:

Description of Offence:	On 2 August 2011, at Harris Park in the State of New South Wales, John Milad Chalhoub (the defendant) did intimidate an authorised official, namely, Inspector Trevor Alan Buckett, in the exercise of the official's functions under the Occupational Health and Safety Act 2000 contrary to a 136(1)(b) of that Act (first offence).
Date of Offence:	2 August 2011
Place of Offence:	Harris Park in the State of New South Wales
Short Particulars:	(a) Trevor Alan Buckett was an Inspector appointed under Division 1 of Part 5 of the Act. (b) "My Good Looks Salon" (the salon) is located at Harris Park. (c) On 2 August 2011, the Inspector attended the salon. (d) The defendant did intimidate the Inspector by any one or combination of the following acts: (i) The defendant threatened the Inspector by turning to the Inspector and saying words like "beat you up", "sort you out", "fix" the Inspector", "going to snap" and "fuck" or "fucking". (ii) The defendant turned to face the Inspector, took a step forward the Inspector, fixed the inspector with a stare and raised his voice. (iii) The Inspector decided to leave because the Inspector feared the defendant, who was one of three males present, was becoming violent.

7 The second respondent was charged with a breach of s 136(1)(a) of the OHS Act, which is in identical terms to the charge brought against the first respondent.

8 The charge under s 136(1)(b) of the OHS Act in respect of the second respondent alleged that:

Description of Offence:	On 2 August 2011, at Harris Park in the State of New South Wales, Bakhos (Bob) Youssef Khalil (the defendant) did intimidate an authorised official, namely, Inspector Mara Karina Ochoa, in the exercise of the official's functions under the Occupational Health and Safety Act 2000 contrary to a 136(1)(b) of that Act (first offence).
Date of Offence:	2 August 2011
Place of Offence:	Harris Park in the State of New South Wales
Short Particulars:	(a) Mara Karina Ochoa was an Inspector appointed under Division 1 of Part 5 of the Act. (b) "My Good Looks Salon"(the salon) is located at Harris Park. (c) On 2 August 2011, the Inspector attended the salon. (d) The defendant did intimidate the Inspector by any one or combination of the following acts: (i) The defendant returned to the Inspector and grabbed the Inspector's upper right arm. (ii) The defendant told the Inspector to "fuck off" and that the defendant didn't care what the Inspector said. (iii) The defendant made loud remarks and swore and got more aggressive in his remarks, and the defendant was one of the three men talking over the Inspector.

Agreed statement of facts

9 On the third occasion that the matters were listed before the Chief Industrial Magistrate's Court there was an indication that guilty pleas were to be entered by both respondents but they were not entered until the matters were subsequently listed for sentence on 18 December 2012.

10 Both Inspectors (Ochoa and Buckett) were present as witnesses at Court and were to be called on 18 December 2012 by the prosecutor to prove all of the matters that had been highlighted in yellow in the "Prosecutor's Statement of Facts". Just before the sentencing proceedings commenced the respondents, represented by solicitor and counsel, agreed to the yellow highlighted parts so the whole document became agreed facts for the purposes of sentencing.

11 It was agreed that on 7 June 2011, Inspector Ochoa attended "My Good Looks Salon" ("the salon"), a hair and beauty salon located at 60 Wigram Street, Harris Park in the State of New South Wales.

12 The second respondent introduced himself to Inspector Ochoa as Danny Khalil and went with the Inspector to a nearby cafe for a discussion and then returned to the salon where further information was provided to the Inspector including showing an insurance policy on a computer screen.

13 The first respondent subsequently arrived and identified himself as the person to whom the Inspector should speak.

14 During the discussions which took place between the Inspector and the first respondent, the Inspector was informed by the first respondent that there was no workers' compensation policy in place and that the first name of the first respondent was not "Danny", but was "Bob". During the discussion, the first respondent was very loud and used abusive language including words such as "fuck" and "fucking" and blamed "that little bitch" for WorkCover's intervention, and for he having received a penalty for non-insurance of workers. An Improvement Notice was issued and served on the first respondent in relation to bullying.

15 On 2 August 2011, at approximately 1.55pm, Inspector Ochoa and Inspector Buckett visited the salon. The first respondent stated that the salon catered for Muslim women and that men were not allowed in the salon. He led the Inspectors outside.

16 Inspector Ochoa informed the first respondent that the purpose of their visit was to follow up on compliance matters including the Improvement Notice that had been served on 7 June 2011. While Inspector Ochoa was speaking, the first respondent spoke over her and cut her off in an angry and abusive manner using words such as "fuck" and "fucking" throughout.

17 The first respondent turned to face Inspector Buckett. He took a small step towards him and stared directly into his eyes, straightened up and appeared to puff his chest out. The first respondent told Inspector Buckett that he should not be there because he was a male and that he [the first respondent] would "beat you up", "sort you out", "fix you", "going to snap". He was angry in his tone, raised his voice and again used expletives, mainly "fuck" and "fucking". Inspector Buckett remained composed and turned slightly away from the first respondent.

18 Inspector Ochoa told the first respondent not to threaten Inspector Buckett. The first respondent began to scream at Inspector Ochoa, stating that Inspector Ochoa was targeting him and his business and abusing her power. After being informed by Inspector Ochoa that she was there in response to an anonymous complaint and issues identified in the workplace, the first respondent began to speak over her and call her names such as "fat bitch", "fucking bitch", "fat cow", "racist bitch", "pig", and "donkey".

19 Inspector Ochoa told the first respondent to stop using abusive language towards her, however he continued to scream at her. During the discussion between Inspector Ochoa and the first respondent, the second respondent and a third male joined them and intervened in the discussion. The second respondent did not respond to questions in respect of what his position in the business was and the third male stated, "it didn't matter who he was".

20 Inspector Ochoa advised there were safety issues at the salon. The third male stated that the Inspector did not know what she was doing and the salon was safe. The three men again spoke over Inspector Ochoa.

21 The first respondent was shown a copy of the Improvement Notice by Inspector Ochoa. He grabbed it and asked what he was meant to do. Inspector Ochoa positioned herself towards the first respondent's right side to go over the measures to be taken as set out in the Improvement Notice. The second respondent came from her other side and took the Improvement Notice from the first respondent's hand. The second respondent said something to the first respondent in another language and then said to Inspector Ochoa words to the effect that "I don't fucking care what you say, we are not going to do anything you say". The second respondent was waving the document in front of Inspector Ochoa's face while he was pacing around. The second respondent walked away. He then returned and grabbed Inspector Ochoa's upper right arm. Inspector Ochoa told him to take his hands off her, which he did. All three men began verbally abusing Inspector Ochoa. The third male said "he didn't touch you" and the first respondent called her derogatory names like "fucking bitch". The second respondent waved the Improvement Notice and business card at Inspector Ochoa and showed it to her saying, "that's who we fucking are, now fuck off, we don't care about this". While waving the Improvement Notice, the second respondent said "talk to our lawyers, I don't care about you, we'll see you in court".

22 Inspector Ochoa told the first respondent that she needed to finalise the issue of non-insurance of the employees at the salon as he had not provided her with a certificate of currency for his workers' compensation policy. The first respondent began to get angry and yelled at her that he had already done what he was supposed to do.

23 Inspector Ochoa informed the first respondent that she understood he may have obtained a policy, but that he had not provided her with a certificate of currency as required.

24 The first respondent appeared to be getting angry again and stated in a raised voice to Inspector Ochoa "stop nodding your head, you're like a fucking nodding donkey".

25 Inspector Ochoa said that she needed to hand him a fine for non-insurance. She tried to hand a WorkCover envelope that contained the fine (Penalty Notice No 7450236238). The first respondent took his hand away and would not take the envelope from her.

26 Around this time the three males were making loud remarks, swearing and getting more aggressive with their remarks. The three men were talking over Inspector Ochoa. The first respondent shouted phrases including "you fat pig", "you racist fucking cow", and "fat bitch".

27 Inspector Ochoa told the three males that they were being obstructive and intimidating and that she would be leaving the site. She was unable to follow up on the compliance matters.

28 At approximately 2.15pm, Inspector Ochoa and Inspector Buckett walked down Wigram Street to the public car park behind the salon and entered Inspector Ochoa's work vehicle. As she drove out of the parking space, the first respondent, the second respondent and the third male walked towards the car park entrance and stood on the pavement on the side of the driveway as she drove out. Inspector Buckett said to Inspector Ochoa that they should leave his vehicle at the site as he feared for his safety and did not think they should split up or leave the safety of the vehicle. As the Inspectors turned out into Wigram Street, they observed the three men laughing and pointing at them as they drove off.

29 Inspector Ochoa called her team co-ordinator, Ms Jasmina Budisa, who instructed that the Inspectors report the incident to the Police and make a statement. They attended Parramatta Police Station and at approximately 3.10pm made a statement to Constable Ben Richardson.

30 The Inspectors were professional in their conduct at all times. Inspector Ochoa was not aggressive in her manner at any time and her tone remained even. Inspector Buckett did not respond to the persons present after he had introduced himself.

Proceedings before the Magistrate

31 In the proceedings below, Mr Milanovic of counsel instructed by Ms Feghali, solicitor, appeared for the first and second respondents and advised her Honour that both respondents pleaded guilty. The second respondent was present before the court. However, Mr Milanovic advised that the first respondent was unable to be in court. He informed the court that his instructing solicitor had been advised that the first respondent's aunt had been diagnosed with liver and bowel cancer and that it was agreed the matter could proceed in his absence. Her Honour was provided with what became the agreed statement of facts and advised that neither defendant had any prior convictions.

32 Mr Milanovic tendered a reference from Councillor John Chedid, Lord Mayor of Parramatta City Council dated 13 December 2012. Mr Chedid stated that the second respondent had been a personal friend of his for 15 years and he had always shown himself to be an outstanding member of the community. He said he was very surprised at what the second respondent had been accused of and that it was highly out of character for him. He further stated that the second respondent had told him at length that he was not guilty of the charges against him. He said that the second respondent was a respectable family man who had been married to his wife for almost 20 years and together they had raised three boys. The second respondent had lived and worked as a hairdresser in the Parramatta community for 15 years and was very well known and respected by everyone. He further stated that he had been a very active member of the community and an excellent supporter of the local Liberal Party Branch and Westmead Children's Hospital Cancer Unit. A medical certificate from Dr NF Sarian was also tendered in respect of the second respondent. Dr Sarian stated that the second respondent was under active treatment for Post Traumatic Stress Disorder following a severe disabling psychological illness as a result of being stabbed. This had required major abdominal surgery on two occasions.

33 Her Honour raised with Mr Milanovic that the letter from the Lord Mayor indicated that the second respondent had stated that he was not guilty of the charges. Mr Milanovic informed her Honour that had been the position earlier "but subsequently, in the circumstances, he has changed his plea to guilty".

34 Mr Milanovic submitted to her Honour that the second respondent had been a very successful hairdresser and highly respected in the Industry prior to being stabbed in a park. After this occurred, he was unable to manage the business and it was taken over by the first respondent who, with investors, renovated the salon and installed new equipment, spending "a couple of hundred thousand dollars". The first respondent attempted to operate the business on a different basis whereby a monthly membership subscription entitled a client/member to unlimited use or access to the salon. The concept failed. On or around this time an apprentice was terminated from the business. During the transition period the second respondent continued to work in the business.

35 Mr Milanovic submitted that the second respondent did not have any form of employment and was "on Centrelink". He submitted "I've got a Centrelink card if your Honour wants to see it. It's a Centrelink Health Care Card that he is entitled to".

36 It was submitted by Mr Milanovic that the second respondent's means of paying any form of fine or any penalty were therefore significantly reduced because he did not have any income other than Government benefits. It was contended that the guilty plea was provided at the first available opportunity and that the second respondent had a number of psychological issues as a result of the stabbing that occurred two years earlier. The explanation for his conduct on 2 August 2011 was that his psychological problems had contributed to his behaviour. He was on medication at the time of the offence.

37 Mr Milanovic submitted that the offences fell at the minor end of obstruction and interference with the exercise of WorkCover Inspectors' functions. Counsel asked her Honour to consider imposing a minimum penalty in those circumstances, consistent with the second respondent's ability to pay any fine.

38 In respect of the first respondent, Mr Milanovic submitted that he had taken over the salon from the second respondent, as he had managed to get approximately $300,000 to $400,000 for the purchase of the salon. The first respondent wished to franchise the salon with Hair House Warehouse with his membership concept idea. As has earlier been observed, this proved unsuccessful. Mr Milanovic submitted that the first respondent was approximately $22,000 in arrears with rent and that there was "quite a few hundred thousand dollars owed for the particular equipment and all that and the company was just sold over or passed on to a new operator so he couldn't get away from it because it was a position where it was no longer profitable".

39 It was further submitted that the first respondent had an aunt who was quite ill. In support of this submission, Mr Milanovic tendered an email forwarded to his solicitor dated 17 December 2012. It read:

Dear Katrina, I am extremely apologetic but I will not be able to attend court on the 18.12.2012 regarding the matter with WorkCover.

Please undersytand (sic) my aunty has been diagnosed with bowel and liver cancer and has only a short life span according to the specialists' report.

I have been assisting my aunty with care dutys (sic) as she is unfit to look after herself and needs my attention.

40 The first respondent's aunt resides in Queensland. This led counsel to submit that the first respondent "is going to become a carer for his aunty" and "he'll probably be in receipt of Centrelink benefits and things of that nature, so, his income and ability to pay under the circumstances are very limited or very minimal.

41 Mr Milanovic asked her Honour to take into account that the first respondent had also pleaded "early or relatively early"; to take into account the seriousness of the conduct which counsel submitted, fell at the bottom end of seriousness in light of matters that came before the court; it was unfortunate that the matter occurred and that the first respondent had worked in the Industry for "quite a while and was relatively experienced".

42 Mr Milanovic further submitted that neither defendant was in business and that it was unlikely that they would return to a business. It followed, so it was submitted, that the consequences or chances of the defendants committing something like this in the future were almost negligible or non-existent and that the court could be quite sure that this incident would not occur or be replicated in the future.

43 Mr BG Docking of counsel who appeared for the prosecutor, emphasised that the court had before it, two separate offences. One related to obstructing, hindering, or impeding a WorkCover Inspector and the other related to intimidating a WorkCover Inspector.

44 Counsel acknowledged that totality had some role to play, but submitted there was a fundamental distinction in respect of the two offences.

45 Counsel did not accept Mr Milanovic's submission that the offences were at "some lower end". It was submitted that the offences were objectively very serious and significant offences, particularly in light of the maximum penalty of $16,500 for each offence.

46 Mr Docking made reference to s 6 of the Fines Act 1996 and submitted that if what had been put to her Honour was an incapacity to pay submission by Mr Milanovic that there was not evidence in the form of income tax returns, statements of the financial positions of the defendants; details of what asset or assets each respondent owned and whether they were unencumbered or not that would enable her Honour to give consideration to any application brought under s 6 of the Fines Act.

47 Her Honour observed that she could take judicial notice of the fact that a person does not receive a Centrelink card if they are in receipt of an income. However, Mr Docking emphasised that there was a vacuum in respect of evidence regarding the respondents' financial position.

Decision of Her Honour

48 Her Honour summarised the factual background to the offences and observed:

... It was a disgraceful performance by both people subjecting two people who were simply attempting to do their job to tirade would be obstruction and certainly intimidation.

I agree with the submissions from the defence that this is not the highest form of intimidation. It was relatively brief. Chalhoub's was confined to verbal threats which undoubtedly were threats of harm, but verbal threats. And, Khalil's was confined to a grabbing of the arm of Inspector Ochura (sic). So, all though it's not at the lowest level, by any means, in my view of intimidation it certainly is no way near the highest. It is towards the middle of the intimidation.

The obstruction was, in both cases, undoubtedly an obstruction which made, in effect - was designed to make their job impossible. Both defendants said they weren't going to do what was required and both defendants said they didn't care. Both defendants said they - well, wouldn't listen to the requirements of the order that the inspector was attempting to read and talked over her the entire time. And both defendants made it impossible for each victim to perform his/her duty.

49 Turning to the subjective factors, her Honour noted that pleas of guilty had been entered or foreshadowed in a "relatively early fashion" and that the defendants "deserve to get credit if not completely full credit most of the credit available" for the pleas. Her Honour accepted that "at the time of the incident the business was under pressure and had since passed to another owner and neither of the defendants were now working in the business".

50 Her Honour observed that there appeared to be an issue as to whether the business was complying with relevant insurance requirements. Her Honour accepted that the first respondent was caring for his terminally ill aunt and accepted that his means were limited because of that fact. Her Honour also accepted that the second respondent was not working and had significant medical and psychological issues following being stabbed and that this had some effect on his ability to conduct his life and to pay a fine, as did the fact that he was on Centrelink benefits. Her Honour observed that there was no evidence of either parties' assets, or the evidence of the funds that they may have available to the defendants. Her Honour noted the maximum penalty of $16,500 and that neither respondent had any prior conviction.

51 Her Honour concluded:

It seems to me they should pay fines which take some account of the more straightened (sic) circumstances that the defendants say they are in, so, for each of the intimidates I impose a fine of $1000 and for each of the hinders, bearing in mind that not only the principles of totality, but also that it is a lesser offence, I impose a fine of $300.

52 After hearing further submissions, her Honour ordered each respondent to pay the prosecution's costs in the sum of $4101.25. Her Honour ordered a moiety to be paid to the prosecutor.

Appeal grounds, notice of contention

53 The grounds of appeal were as follows:

1. Her Honour erred in giving insufficient weight to objective factors in sentencing the Respondent, in spite of her Honour's comments at the sentencing hearing as to the objective seriousness of the offence.

2. In relation to the section 136(1)(a) offence, her Honour erred in failing to take adequate account of relevant matters, including:

2.1 That the Respondent's actions were not a minor obstruction;

2.2 That the Respondent's actions made it impossible for WorkCover Inspectors to go about their duties;

2.3 That it was, in Her Honour's words, a 'disgraceful performance' by the Respondent towards officials attempting to do their job;

2.4 The maximum penalty for an individual defendant is $16,500;

2.5 The requirements for both specific and general deterrence in assessing the appropriate sentence.

3. In relation to the section 136(1)(b) offence, her Honour erred in failing to take adequate account of relevant matters, including:

3.1 That the Respondent's actions were a serious example of intimidation;

3.2 That the Respondent's actions made WorkCover Inspectors fearful;

3.3 That during the course of the intimidation, the Respondent's actions included physical intimidation;

3.4 That it was, in Her Honour's words, a 'disgraceful performance' by the Respondent towards officials attempting to do their job;

3.5 The maximum penalty for an individual defendant is $16,500;

3.6 The requirements for both specific and general deterrence in assessing the appropriate sentence.

4. Her Honour erred in imposing penalties on the Respondent that were manifestly inadequate in all the circumstances.

5. Her Honour erred in giving too much weight to subjective matters.

6. Any other ground that the Court considers appropriate.

7. Any other matter that becomes apparent on the reading of the transcript.

54 A notice of contention was filed by the respondents' former solicitors contending that the decision of Magistrate Barkell should be affirmed.

Change of plea

55 When the appeal came on for hearing before the Full Bench on 14 May 2013, the respondents, who were self represented, protested their innocence and submitted they only entered pleas of guilty to the charges on the advice of their lawyers and in the expectation they would receive only a light penalty.

56 In light of the respondents' protestations, the Full Bench decided to provide the respondents with the opportunity of seeking legal advice regarding a change of plea. The respondents were given 21 days in which to seek legal advice and to then advise the President's Associate regarding any application by them to vacate the guilty pleas.

57 The second respondent, Mr Khalil, indicated on 29 May 2013, in a note to the Court, that he wished to change his plea to one of not guilty. The first respondent, Mr Chalhoub, in a brief appearance before the President on 12 July 2013, indicated that he would maintain his plea of guilty.

58 Given that Mr Chalhoub was advised in the proceedings on 12 July 2013 that the hearing of the appeal would proceed on 6 September 2013 and given there was no communication from Mr Chalhoub to the Court regarding his non-appearance on that day, the Full Bench decided to proceed in Mr Chalhoub's absence on the basis of a plea of guilty. No communication has been received from Mr Chalhoub since 6 September explaining his absence.

59 That leaves the question of Mr Khalil's application to change his plea to not guilty. Despite the Court's encouragement for Mr Khalil to seek legal advice regarding an application to change his plea, he did not obtain that advice, indicating he could not afford to do so. Mr Khalil appeared self-represented.

60 With the assistance of an interpreter Mr Khalil's evidence was that from the outset it was his desire to plead not guilty. However, his solicitor's advice was "to plead guilty to finalise the case as soon as possible."

61 In explaining why he considered he was not guilty of the charges, Mr Khalil stated:

Your Honour, because the whole issue from the beginning, I didn't respect these people I always respect the people, and the lady only does the lady. They was shouting in the salon. I was working. I was very busy. They start to shout in the salon. And I left my customer... I left the customer and I come nicely to the inspector, and I put my hand on her shoulder from the back to ask her nicely again talk outside, and she jumped and she said: "Don't touch me".

Your Honour, I don't mean to, to be any rude to the lady or anything, but may be she understand English more than me, but I don't mean to unrespect (sic) the lady who, or I didn't I just only put my hand on her shoulder from the back and I don't mean anything. To just ask her nicely because speaking embarrass. The shop, too many people was there, and the business start was new business. And I was been afresh from my stabbing.

John Chalhoub, he come over. I was, that was my only salon before. But after my stabbing, I lost everything your Honour. And Mr Chalhoub decided to come and help me and I take over the business off me. And that suddenly happened, and that lady came, and that's what I done. I swear on Holy Bible, I didn't come near the lady. I didn't touch her.

And outside. Outside, when she was talking, I was like, I done nothing. She was like talking and answer back. I did, your Honour. And at the end, I tell her: "Please. Please, your job now, not to be here please. We're very busy. If you're not happy, go ahead and take us to Court". That's the whole issue. That's whole what happening, your Honour.

62 In cross-examination and in answer to a question from counsel for the prosecutor as to whether he was present in the Chief Industrial Magistrate's Court when the Court was told he was entering a guilty plea, Mr Khalil stated that he said to his solicitor:

I tell her: "I want to finish this matter. Please, I can't afford to pay too much money. Somehow, can we the best solution to do it?" She said: "If you want, I just plea guilty". We plead guilty, and I was like really upset from the charge $5,300. And your Honour was, with all my respect, they put that fine on my licence, to the, to, they send me the letter from the licence. I still have the letter on me. They put the charge on my licence and they make me lose my licence till I pay that money your Honour. And I don't deserve all that because I done nothing, and now because you people, you adjourned the Court, I like to take it, although it doesn't matter and I will say 100 percent not guilty.

And later:

The only reason from the beginning, I always say I'm not guilty. But because it was financial issue, and my impression, my sickness, I tell: "What's the best solution to get finish that case?" She said: "Well, we can plea guilty and finish it". That's, that's why I listen to her and I did plea guilty. But I was shocked when they charged $5,300. I was shock. I was really shocked. But I plead guilty, nothing I can do. And when adjourned, the WorkCover, I thank God. I thank God, because I don't want that change, to give me chance to change my mind because I'm not guilty.

63 We note the following exchange in Mr Khalil's cross-examination:

Q. On the day when you were sentenced and the fine and costs were ordered, did you know that the Court had already been told it was to be a guilty plea?

A. WITNESS: Yes, I do.

64 Counsel for the prosecutor referred to a recent decision (Inspector Walker v Earthquake Promotions Pty Ltd [2013] NSWIRComm 56) in which the Court referred to a summary of the principles applicable to the withdrawal of a guilty plea:

[13] The principles applicable to the withdrawal of a guilty plea were addressed very recently in Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49 at [43]-[53]. In summarising the relevant principles at [53] the Full Bench stated:

It is apparent from the authorities that:

(1) The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence.

(2) A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. There must be shown to be some circumstance that indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt; there must be a real question about the guilt of the accused.

(3) A miscarriage of justice may occur where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.

(4) A grant of leave to withdraw a plea would involve a consideration of the circumstances in which the plea was made, with leave being granted if, for instance, it resulted from a mistake of fact or a misunderstanding of the law, or inability to obtain legal representation, or if the interests of justice otherwise require.

(5) Withdrawal of a plea of guilty may involve a consideration of whether the advice given to the applicant was or was not imprudent and inappropriate or "flagrantly incompetent".

(6) Courts will approach any attempt to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection.

65 In applying these principles to the facts of the present proceedings, first it is apparent Mr Khalil was in possession of all of the facts. He had received the prosecutor's brief of evidence that contained, amongst other things, the statements of the two inspectors as to what occurred on 2 August 2011 at or near the salon, the contemporaneous notes taken by the two inspectors and extracts from the police computer system (COPS) recorded as part of the complaints made by the two inspectors to the police on 2 August 2011.

66 Secondly, in order that he may be permitted to withdraw his guilty plea, Mr Khalil bears the onus of showing there had been a miscarriage of justice. In that respect, we have on the one hand, a statement of agreed facts tendered in the Chief Industrial Magistrate's Court as evidence of what occurred on 2 August 2011. Acceptance of those agreed facts would satisfy all of the essential legal and factual elements of the charges. In the proceedings before Magistrate Barkell the prosecutor had intended to call the two inspectors regarding facts referred to in the statement of facts that the prosecutor understood were to be disputed by the two defendants. However, that became unnecessary because counsel for the defendants advised the prosecutor at the outset of the proceedings the facts would no longer be disputed. Hence, what had been the prosecutor's statement of facts was tendered as an agreed statement of facts. The pleas of guilty were entered on the basis of the agreed facts.

67 On the other hand, we now have Mr Khalil's uncorroborated oral evidence that he was polite to the inspectors and there was no obstruction or intimidation by him of the inspectors. The obligation on Mr Khalil was to show that there was a real question about his guilt. On 14 May, the Full Bench adjourned the proceedings to allow Mr Khalil the opportunity of preparing a case to withdraw his guilty plea. He took no steps in that respect other than, it may be inferred, to decide to rely solely on his own oral evidence. This was in circumstances where his solicitor in the proceedings in the Chief Industrial Magistrate's Court was in the salon on 2 August 2011 and according to Mr Khalil "saw everything". Mr Khalil said he did not ask his solicitor to corroborate his evidence because he did not want to "harass" her. There were also customers in the shop on the day in question, but Mr Khalil called none. Further, there was no explanation why Mr Khalil did not call Mr Chalhoub to corroborate, or a third man who was apparently involved in the confrontation with the inspectors.

68 In the circumstances, we do not consider Mr Khalil has discharged the onus on him to show there is a real question about his guilt. The weight of the evidence in the form of the agreed facts is overwhelmingly against Mr Khalil.

69 Thirdly, a miscarriage of justice may occur where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it. There is no issue that Mr Khalil did not understand the charges against him. As to his intention, Mr Khalil has given evidence and submitted that he only entered a plea of guilty on the advice of his solicitor hoping to resolve the matter quickly and to minimise costs. In this respect, in Meissner v R [1995] HCA 41; (1995) 184 CLR 132 Dawson J relevantly stated at 157:

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.

70 In our opinion, no miscarriage of justice occurred and we do not consider Mr Khalil's plea should be set aside.

71 Fourthly, leave to withdraw a guilty plea may be granted if, for instance, it resulted from a mistake of fact or a misunderstanding of the law, or the defendant was unable to obtain legal representation. None of those considerations arise in this case.

72 Fifthly, the question arises as to whether the advice allegedly given to Mr Khalil by his solicitor to enter a guilty plea was or was not imprudent and inappropriate or "flagrantly incompetent". Mr Khalil has not submitted the advice he received was imprudent and inappropriate or flagrantly incompetent and there is no evidence to suggest it was. If Mr Khalil's evidence is accepted, he said to his solicitor he wanted "to finish this matter" and wanted to know the "best solution". According to Mr Khalil his solicitor offered the option of a guilty plea, which he accepted.

73 We have no way of knowing on what basis the solicitor's advice was given to Mr Khalil. It may well have been on the basis that having regard to the evidence the solicitor considered a guilty plea was appropriate and that it would be to Mr Khalil's ultimate disadvantage to put the prosecution to proof.

74 The relevant principles suggest we should approach any attempt to change a plea of guilty with caution bordering on circumspection. In our opinion, there is no basis at all upon which Mr Khalil's application to vacate his guilty plea should succeed. We decline to grant the application.

Leave to appeal

75 The appeal is brought pursuant to s 197(1)(b) of the IR Act as applied by s 105(3) of the OHS Act.

76 Mr Docking accepted that leave to appeal was required. In respect of the relevant appeal principles, counsel relied upon the decision of the High Court of Australia in Hili v The Queen; Jones v The Queen [2010] HCA 45; ( (2010) 272 ALR 465 at [59] - [60] (footnotes omitted):

[59] As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error".

[60] The Court of Criminal Appeal also said that "manifest error is fundamentally intuitive". That is not right. No doubt, as the Court went on to say, manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

77 Counsel also relied on the principles governing an appellate court's approach on appeal against a sentence imposed in criminal proceedings as set out in Inspector James v Paul [2011] NSWIRComm 82; (2011) 209 IR 212 (at [15] - [18]).

78 We consider that leave to appeal should be granted for the following reasons:

(a) Firstly, to determine whether it was reasonable for her Honour to impose a penalty of $300 in respect of an offence under s 136(1)(a) of the OHS Act and $1000 in respect of s 136(1)(b) of the OHS Act where the maximum penalty for an individual defendant is $16,500, particularly in circumstances where her Honour found the objective seriousness of the matter to be in the mid-range. Her Honour rejected the submission from the respondent's counsel that the offences were in the low-range.

(b) Secondly, the appeal raises important questions as to the need for Local Courts sitting in the occupational health and safety jurisdiction of the Court, where they are required to assess penalties for offences under different sections of the OHS Act, to separately address the appropriate sentencing principles and relevant objective and subjective features of each offence in determining the appropriate penalty.

(c) Thirdly, whether the operation of s 136(1)(a) should be construed as a lesser offence than that under s 136(1)(b) in circumstances where each offence carries the same maximum penalty.

Consideration

79 On the evidence, the offences were objectively serious. The evidence is the respondents inspired fear in the Inspectors by their conduct. Inspectors should not be physically intimidated or threatened with physical attacks in the course of their duties under the OHS Act. Her Honour's conclusion was that the actions of the respondents were not a minor obstruction and that the actions of both respondents made it impossible for Inspector Ochoa to carry out her duty. Her Honour also found that the conduct of both respondents was a "disgraceful performance" by them towards officials attempting to do their job. Nevertheless, regardless of these findings, her Honour imposed low penalties, despite finding that the intimidation offence fell within the middle of the range. The penalties were arrived at by applying a reduction of "slightly less" than 25 per cent for the pleas, although her Honour did not specify with precision the reduction that she allowed for the utilitarian savings flowing from what she must have considered to be relatively early guilty pleas.

80 It is in this context that the question of whether the penalties imposed were manifestly inadequate, given the applicable sentencing principles, the evidence and the maximum penalty imposed by the OHS Act for a first offence, arises for consideration.

81 It is unarguable that penalties of $1000 and $300, even for a first offence of this kind, are extremely low, given that the maximum penalty for each offence is $16,500.

82 For reasons that we will explain, in our view these are cases where the sentences imposed at first instance were manifestly inadequate and warrant correction on appeal.

83 The charges to which pleas were entered included that the respondents did: "obstruct, hinder or impede an authorised official, namely, Inspector Mara Karina Ochoa, in the exercise of the official's functions under the Occupational Health and Safety Act 2000", and did: "intimidate an authorised official".

84 Attention first needs to be given to the two charges against each of the respondents and the conduct of each of the respondents in relation to those charges. The obstruction, hinder and impede charges under s 136(1)(a) were not in identical terms and the intimidation charges under s 136(1)(b) were significantly different. The intimidation charge in relation to Mr Chalhoub was particularised as the defendant threatening Inspector Buckett by using the words "beat you up", "sort you out", "fix" the Inspector, "going to snap" and "fuck" or "fucking." Mr Chalhoub turned his face to the Inspector, took a step towards the Inspector, fixed the Inspector with a stare and raised his voice. Thereupon, the Inspector decided to leave because he feared Mr Chalhoub was becoming violent.

85 In Mr Khalil's case, the intimidation charge involved Inspector Ochoa and was particularised as the defendant turning to the Inspector and grabbing the Inspector's upper right arm, telling the Inspector to "fuck off", that the defendant did not care what the Inspector said, making loud remarks, swearing and becoming more aggressive in his remarks, being one of three men who were speaking over the Inspector.

86 The hinder and obstruct charge against Mr Chalhoub was particularised as: cutting off the Inspector in an angry and abusive manner and swearing; speaking over the Inspector and calling the Inspector names such as "fat bitch", "fucking bitch", "pig" and "donkey" and screaming at the Inspector; when trying to explain safety issues, Mr Chalhoub and two other men "cut her off.

87 Mr Khalil's hinder and obstruct charge was particularised as: during the Inspector's attempted explanation of safety issues she was cut off by three men, one being Mr Khalil; the Inspector could not finish speaking to Mr Chalhoub about the Improvement Notice because Mr Khalil told her that he "didn't fucking care" what the Inspector said and waved the Notice in front of her face while he "paced around."

88 The Agreed Facts showed that Mr Chalhoub started the abuse, there were heated exchanges and, some time afterwards, Mr Khalil and another man became involved and "spoke" over the Inspector. Mr Khalil then waved the Improvement Notice in the Inspector's face and swore. He walked away and then turned and grabbed the Inspector's arm and when told to take his hands off the Inspector, he did so. It was then alleged that all three were verbally abusive to the Inspector. Mr Chalhoub made some remark about the "fucking bitch" that had got him into trouble and then Mr Khalil again waved the Improvement Notice and swore. Mr Chalhoub then became angry over the Improvement Notice and the issue of not having a Certificate of Currency for his Workers Compensation. Mr Chalhoub was then given a fine but refused to accept it. During this time, all three men made loud remarks, were swearing, becoming more aggressive and talking over the Inspector.

89 When the Inspectors were in the carpark preparing to leave, the three men were present and stood on the pavement as the Inspectors drove out. The Inspectors said they feared for their safety with the men laughing and pointing at them. The carpark incident was not particularised in any of the offences, but appeared in the Agreed Facts. It cannot add anything to the charges.

90 Notably, the particulars and the Agreed Facts indicate three people shouting and being abusive at the same time and it is not entirely clear who said what during these events. Significantly, the Agreed Facts only have Mr Chalhoub using the s 136(1)(a) language - Mr Khalil is not recorded as saying fat bitch, cow, pig or donkey.

91 The intimidation charges as particularised and supported by the Agreed Facts, demonstrate a difference between the behaviour of Mr Chalhoub and Mr Khalil. Mr Chalhoub appears, on the Agreed Facts, to have instigated the abusive behaviour and that appears to have carried on for a time before the other two men became involved. The nature of Mr Chalhoub's intimidation charge, however, is quite serious with direct threats of beating up, fixing and sorting out the Inspector as well as the swearing that accompanied those threats.

92 On the other hand, Mr Khalil grabbed the Inspector's right arm and removed it when told to do so. His conduct then involved swearing and probably swearing aggressively, but he is not alleged to have threatened to beat up, sort out or fix the Inspector, nor is his alleged use of abusive language as offensive or long running as is that of Mr Chalhoub. Further, telling the Inspector that he did not care what she said was common to both charges. Whilst grabbing the Inspector's arm may be regarded as a serious example of intimidation (although he let go immediately he was asked to do so), when Mr Khalil's conduct is assessed overall we consider it was less serious than the conduct of Mr Chalhoub.

93 The Agreed Facts shows that the aggressive and abusive behaviour was commenced by Mr Chalhoub and later came to involve the two other men, including Mr Khalil. The common element in both charges of intimidation is the continued aggressive swearing. The aggressive swearing, therefore, represents a course of behaviour that overlaps both charges such that the principle of totality has a role to play in settling upon a final penalty. It is also to be taken into account that both respondents were first offenders and entitled to the leniency accorded to that status.

94 In dealing with the offences, her Honour Magistrate Barkell concluded that the intimidation offence was in the mid-range, while the hinder offence was a "lesser offence". When her Honour said this, we do not believe that she was stating that the statutory offence under s 136(1)(a) of hindering was a lesser offence than the statutory provision of s 1361(b) dealing with intimidation, but rather was assessing the relative seriousness of the hinder offence as committed by the respondents and thereby indicating that a lower penalty was warranted. Her Honour was undertaking this sentencing task in a busy Court and was dealing with the matters ex tempore and, understandably, her language may not have been as precise as in a written decision.

95 Her Honour made no reference to whether she took into account deterrence. In our view, general deterrence was an important factor in respect of penalty. The Inspectors were from the WorkCover Authority of New South Wales, the principal statutory regulator of the OHS Act. A strong message should have been sent to industry in general that offences of intimidation and obstruction of authorised officials would be met with strong punishment and judicial condemnation. The legislative scheme should not be frustrated in the manner engaged in by the respondents.

96 In respect of specific deterrence, we accept that the second respondent is no longer working in the hairdressing industry and nor is the first respondent. However, there was no evidence that either respondent would never work again or operate a business again. The penalty should include an appropriate element for specific deterrence: see Capral Aluminium at [74].

97 Her Honour also fell into error in not first determining or assessing an appropriate sentence for each offence before considering questions of totality. The element of obstructing, hindering or impeding in the s 136(1)(a) offences are different from and not common with the elements of intimidating in the s 136(1)(b) offences, both in terms of the essential legal and factual elements. Whilst the elements of the offences are different, we noted earlier that a common feature of each of the offences committed by the two defendants was aggressive swearing and this has to be taken into account in applying the totality principle. Nevertheless, her Honour failed to comply with the obligations to review the aggregate penalty and consider whether it was just and appropriate, as a reflection of the overall criminality.

98 In Inspector Fraser v Karabelas [2011] NSWIRComm 56; (2011) 207 IR 228, the Full Bench observed at [27]:

It is clear from a reading of her Honour's judgment that she gave consideration to the principle of totality but apart from stating that she took that principle into account, precisely how that principle was applied was not disclosed. Having regard to the breadth of considerations that may legitimately arise in the application of the principle of totality, her Honour's failure to disclose what aspects of the matter she took into account reveals an error that itself may warrant an appeal being upheld. It must be accepted, however, that despite this defect, if the sentence imposed fell within an acceptable range after the totality principle was applied, then it may be appropriate to dismiss the appeal.

99 If her Honour believed that the totality principle required an adjustment to the fines which otherwise may have been appropriate, the amount of each fine had to be altered: see Crown in Right of the State of New South Wales (Dept of Education and Training) v Keenan [2001] NSWIRComm 313; (2001) 105 IR 181 (at [23] - [29], [51]); Karabelas (at [28] - [34]) and Environment Protection Authority v Barnes [2006] NSWCCA 246; (at [44] - [50]).

100 Her Honour also referred to the subjective matters relevant to the assessment of penalty, which we would observe were proven only to a limited extent on sentence or, in respect of some matters, were raised by the respondents' legal representative in submissions without producing evidence at all. The Court has emphasised on a number of occasions the nature of probative evidence that usually would be required to support an application under s 6 of the Fines Act 1996 (see, for example, See for example, Workcover Authority of NSW (Inspector Mansell) v Jian Chen and Obing Pty Ltd t/as Old But New [2004] NSWIRComm 247; (2004) 137 IR 33; McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310.

101 However, we note what was said in Inspector Fraser v Karabelas (No 2) [2011] NSWIRComm 153 at [17] - [22]:

[17] Section 6 of the Fines Act, therefore, operates on a broad basis: the Court is required to consider "such information regarding the means of the accused as is reasonably and practicably available to the court for consideration" and "such other matters as, in the opinion of the court, are relevant to the fixing of that amount." Those words do not suggest any narrow or confined consideration but they leave the court to assess the appropriateness and adequacy of the information according to the circumstances concerning each particular case. Individual directors and family companies may not be as well placed to provide extensive material or specialist opinions as other better resourced individuals or companies.

[18] The three breaches committed by the respondent, Mr Karabelas, are serious offences occurring in the context of a prior conviction for a similar breach. The offences have been found to be aggravated in each case and represent a continuing disregard for safety at a large building site. The penalty to be imposed must reflect that situation except for an assessment of the extent to which that penalty should be reduced because of the financial circumstances of the respondent.

[19] The evidence and submissions for the appellant/prosecutor highlight the inadequacy of the financial information provided by Mr Karabelas. The solicitor for the appellant/prosecutor drew to the attention of Mr Karabelas' legal representatives the inadequacy of the material provided in his affidavit and sought additional information and source documents. None have been forthcoming. No party has asked for an oral hearing and no objection has been raised to the Court receiving Mr Karabales' affidavit nor has he been required for cross-examination.

[20] While the Court accepts much of the criticism levelled by the appellant/prosecutor against the adequacy of the material provided, the absence of submissions and a more detailed response to the issues raised by the appellant/prosecutor may also be an indication of the straitened financial circumstances of Mr Karabelas. The present state of the evidence leaves the Court in a difficult position. Mr Karabelas has sworn to being in dire financial circumstances but the full extent of his financial circumstances is unclear. Bankruptcy notices were served in June 2010 and February 2011 but Mr Karabelas' affidavit does not state that bankruptcy proceedings have, in fact, been commenced.

[21] A further issue arises for consideration. The terms of Mr Karabelas' affidavit did not raise the question of costs but logically, any inability to fully pay fines must also apply to costs. As no submissions were filed for the respondent, this aspect has not been developed.

...

[22] Applying the spirit of s 6 of the Fines Act, the Court can accept that Mr Karabelas is facing financial difficulties but the extent of those difficulties has not been established. Importantly, Mr Karabelas has accepted a limited ability to pay increased fines rather than asserting a total inability to pay any fine. His position, so described, may be met by an application to the Registrar for time to pay and/or to pay by instalments. The Court will, therefore, proceed on the basis that there will be some modest reduction in the penalties to be imposed.

A similar approach to that adopted by the Full Bench in Karabelas (No 2) may be adopted in the present case. It is clear that the Magistrate was prepared to accept the submissions from the Bar Table concerning the financial position of both respondents. She referred to "the straitened circumstances the defendants say they are in." In relation to Mr Khalil her Honour said:

Certainly, that [the physical but some psychological issues] has some affect on his ability to conduct his life and certainly to pay a fine, as does the fact that he is on Centrelink benefits. But, I also accept that there is no evidence of either parties assets and no evidence of the funds that they may have available. Although, there is evidence indirectly that Mr Khalil is unlikely to have cash in his own name, because it's in my understanding that you don't get Centrelink benefits if you do have cash.

And further:

I also accept that Mr Khalil is now not working since the end of his business and I accept that Mr Khalil has significant medical and psychological issues following an attack where he was stabbed and suffered a serious wound to his abdomen area. And, I accept that that has resulted in not only physical but some psychological issues.

Certainly, that has some affect on his ability to conduct his life and certainly to pay a fine ...

102 In relation to Mr Chalhoub it was said he was under financial stress and owed money from the failed business venture. A submission was made on his behalf that:

Furthermore, he's in a position where he has an aunty that's quite ill, and I can hand up an email that was sent to my instructing solicitor where he outlines his position. He is, at the moment, in Queensland residing in Robina. That's where his aunty resides. He's unemployed and he's going to become a carer for his aunty and I'm instructed that it means, well, being a carer, I think, he's going to be in the position where he'll probably be in receipt of Centrelink benefits and things of that nature. So, his income and ability to pay under the circumstances are very limited or very minimal.

103 As her Honour acknowledged, counsel for the defendants did not tender any financial documents in support of the submissions. A relevant consideration, however, is that the guilty pleas were entered on the hearing day when it became clear that particularly Mr Khalil wanted to avoid the stress of a hearing and was prepared to enter a guilty plea. If the matter was to be disposed of quickly, then there was little opportunity, other than to seek an adjournment and incur more costs, to obtain the type of evidence that the Court would normally expect in relation to any application made under s 6 of the Fines Act. It is difficult in those circumstances to refuse to allow any concession at all regarding incapacity to pay.

104 Moreover, when the appeal was dealt with by the Court, the respondents were unrepresented. In that combination of circumstances, there is a capacity in the Court to acknowledge, albeit with some reluctance, what the Magistrate accepted, namely, that there were matters that affected the respondents' ability to meet a fine, with Mr Khalil the most affected person. The considerations generally raised in relation to Mr Khalil, both as to the nature of his offence and his means, suggest that on the application of the parity principle, he should face a lower fine than Mr Chalhoub.

105 Notwithstanding the above, it is most important to maintain as a general principle that if defendants wish to rely on s 6 of the Fines Act that reliance will need to be underpinned by probative evidence. In the present case we are not prepared to discount to any substantial degree the amount of fine to be imposed on either respondent on the basis of incapacity to pay. However, in light of the circumstances as we have described them, including the approach the Magistrate took to the question of capacity to pay fines, we will "proceed on the basis that there will be some modest reduction in the penalties to be imposed": Karabelas (No 2) at [22].

106 A further error concerns the discount for pleading guilty. Her Honour found the respondents were entitled to "slightly less" than the full 25 per cent discount, as guilty pleas were not entered at the earliest possible opportunity. There was no indication of an intention to enter guilty pleas until the third occasion that the matters were listed before the Chief Industrial Magistrate's Court. However, the guilty pleas were not formally entered until the matters were subsequently listed for sentence on 18 December 2012. Even then there were to be disputed facts, necessitating the prosecutor having the inspectors attend the Court to give evidence regarding the disputed facts. However, immediately prior to the proceedings commencing on 18 December 2012 counsel for the respondents indicated agreement to all of the prosecutor's facts.

107 In these circumstances, it was an error to grant a discount of "slightly less" that 25 per cent for the utilitarian value of the pleas. A lower discount was warranted.

108 We are satisfied that the penalties imposed do not reflect the gravity of these offences when viewed objectively, so that it must be concluded they were manifestly inadequate. It follows from this conclusion that there has been a failure to properly exercise the sentencing discretion at first instance: see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; (2000) 175 ALR 315; (2000) 74 ALJR 1538 (at 340).

109 It must, therefore, follow that the appeals should be upheld and the respondents re-sentenced in accordance with the principles determined in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 (at 474) and Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [2000] NSWIRComm 71; (2000) 49 NSWLR 610 (at 646); (2000) 99 IR 29 (at 53). These cases require a consideration of the objective seriousness of the offences, ensuring that there is an allowance for subjective factors that does not produce a sentence which fails to take into account the objective seriousness of the offence.

110 This is, in effect, a Crown appeal. It was relevantly held in R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486; that:

(a) The words "double jeopardy" in s 68A of the Crimes (Appeal and Review) Act 2001 refer to the distress and anxiety which a respondent suffers from being exposed to the risk of a more severe sentence;

(b) Section 68A prevents the Court of Criminal Appeal on a Crown Appeal from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

111 Further, we note also the observations of the Full Bench in Karabelas (No 1) at [38] as follows:

The Court is satisfied that this approach is appropriate and proper in the case of the three offences committed by Mr Karabelas and that, accepting the primary penalties proposed by her Honour, there was, nevertheless, a manifest inadequacy resulting from the selection of $18,500 as representing the total criminality of these offences. In reaching this conclusion, the Court is aware that the principle of double jeopardy that had previously applied to Crown appeals has been modified by s 68A of the Crimes (Appeal and Review) Act 2001 and is also aware of the consideration given to that provision by the Court of Criminal Appeal in R v JW (2010) 199 A Crim R 486; [2010] NSWCCA 49;. The legislation and the approach of the Court of Criminal Appeal in R v JW has guided the approach of the Court in this matter in relation to the principle of double jeopardy.

112 We are satisfied that higher penalties are required in these matters. Inspector Ochoa and Inspector Buckett were obstructed and intimidated in an offensive and unacceptable manner as they sought to carry out their duties of policing the occupational health and safety laws.

113 We are of the view that there should be a discount of 15 per cent on penalty flowing from the utilitarian savings achieved by the entry of the pleas. The other various subjective matters referred to by her Honour should result in a further discount of the penalty.

114 As we earlier mentioned, the Court is required to apply the principle of totality in determining the appropriate penalty. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 citing DA Thomas, Principles of Sentencing (2nd ed, 1979) 56-57; cited with approval in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at [18]: see Inspector Christensen v Hebron Holdings Pty Limited (formerly known as Taylor Railtrack Pty Limited) [2012] NSWIRComm 31 at [63]

115 In the present appeal it may be accepted the totality principle has a role to play in considering whether any aggregate sentence that is proposed is "just and appropriate" noting, as we have, the element of obstructing, hindering or impeding in the s 136(a) offences is different from and not common with the element of intimidating in the s 136(b) offences, both in terms of the essential legal and factual elements, although as we earlier stated, there was conduct of the respondents that was common to both charges.

116 In determining the appropriate penalty we have also had regard to the costs order made at first instance, which required each respondent to pay the prosecution's costs of $4,101.25.

117 In relation to penalty, we have concluded as follows:

(a) In respect of Mr Chalhoub, the intimidation charge under s 136(1)(b) should attract a penalty of $3,000 and for the hinder and obstruct charge under s 136(1)(a) the penalty should be $1,500. Having regard to the totality principle a penalty of $3,500 appropriately reflects the total criminality involved. The penalty of $3,500 should be split as $2,600 in respect of the intimidation charge and $900 in respect of the hinder and obstruct charge.

(b) In respect of Mr Khalil the intimidation charge under s 136(1)(b) should attract a penalty of $2,100 and for the hinder and obstruct charge the penalty should be $1,400. Having regard to the totality principle a penalty of $2,350 appropriately reflects the total criminality involved. The penalty of $2,350 should be split as $1,600 in respect of the intimidation charge and $750 in respect of the hinder and obstruct charge.

Orders

118 The Court makes the following orders:

(1) Leave to appeal is granted.

(2) The application by Bakhos Youssef Khalil to withdraw his plea of guilty is refused.

(3) The appeals are upheld.

(4) The notice of contention is dismissed.

(5) John Milad Chalhoub is fined an amount of $2,600 in respect of the intimidation charge under s 136(1)(b) of the Occupational Health and Safety Act 2000 and $900 in respect of the hinder and obstruct charge under s 136(1)(a) of that Act.

(6) Bakhos Youssef Khalil is fined an amount of $1,600 in respect of the intimidation charge under s 136(1)(b) of the Occupational Health and Safety Act 2000 and $750 in respect of the hinder and obstruct charge under s 136(1)(a) of that Act.

(7) The respondents shall each bear half the costs of the prosecutor's costs of the appeal as agreed or assessed together with the prosecution's costs of $4,101.25 in the Chief Industrial Magistrate's Court.

119 It may be noted that it is open to either of the respondents to apply to the Registrar to pay the fine and the costs by instalments.

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Decision last updated: 28 October 2013